Casley and Nisbett
[2007] FMCAfam 38
•1 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CASLEY & NISBETT | [2007] FMCAfam 38 |
| FAMILY LAW – Children – family environment – anti-social characteristics – capacity of the Respondent to exercise contact in an unsupervised manner – need to protect the children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence – willingness of the parties to facilitate a continuing relationship with the other parent – capacity to provide for the needs of the children. |
| Family Law Act 1975 ss.60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 65D(1) |
| U v U (2002) 211 CLR 238 Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR CASLEY |
| Respondent: | MS NISBETT |
| File number: | PAM 4616 of 2004 |
| Judgment of: | Burnett FM |
| Hearing date: | 25 January 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 1 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms McLennan |
| Solicitors for the Applicant: | Bernice Anning solicitor |
| The Respondent appeared on her own behalf |
ORDERS
The children [X] born in 1995 and [Y] born in 1997 live with the father.
That the mother spend time and communicate with the children as follows unless otherwise agreed:
(a)for the whole of the school term holidays, not including Easter school holidays and Christmas school holidays, each year;
(b)for a period of three consecutive weeks during the Christmas school vacation each year commencing the first three weeks of the Christmas school holidays in the 2007/2008 Christmas period and the last three weeks of the Christmas school holidays in the 2008/2009 Christmas period with those arrangements to continue on an alternating basis thereafter;
(c)by telephone to the father’s home number as follows:
(i)each Monday and Friday between 3.30pm and 4.00pm;
(ii)for the children’s birthday, when not spending time with the mother, at the father’s home between 3.30pm and 4.00pm if a weekday otherwise the children will telephone the mother;
(iii)on the mother’s birthday, the children will initiate the telephone call to the mother between 3.00pm and 4.00pm.
All time spent with the children will be supervised by a mutually acceptable party otherwise by the father’s sister, Ms B in Sydney.
The parties agree to provide reasonable notice to the other if they are unable to adhere to the telephone arrangements set out in order 3.
That the parties not denigrate the other or allow anyone else to denigrate the other or discuss any Court matters or other contentious issues between the parties and their partners in the presence of or hearing of the children.
That the mother be responsible for the cost of travel between the Sunshine Coast and Sydney at the commencement of the time children spend with her, and the father be responsible for the cost of travel between Sydney and the Sunshine Coast at the conclusion of these periods.
That the mother provide a certified copy of [Y]’s birth certificate to the father.
That at all times, the parties shall keep the other informed of their current residential address and notify the other of any change of same within seven (7) days of that occurring.
That the father is to authorise any educational institution attended by the children to forward directly to the mother without limiting the generality, school reports, newsletters and other information which the mother may reasonably require at the mother’s expense. The mother is to be entitled to attend parent/teacher interviews, school functions and other activities involving the children and to contact the school regarding any urgent concerns.
That the father shall authorise any health professional whom the children may consult to provide to the mother any reasonable request for information at the mother’s expense. That the mother shall authorise any health professional whom the children may consult from time to time to provide to the father any reasonable request for information at the father’s request. That both parties shall notify the other should any medical emergencies arise and if the children require any medical and dental treatment.
That the parties shall not consume alcohol to excess or become intoxicated or drug-affected in the presence of the children or to expose the children to any person in an intoxicated state in the home while exercising contact with the children.
That the parties ensure that the children are only exposed to age appropriate entertainment of any medium.
That the mother ensure that the children have adequate bedding not including sleeping on the floor in front of the television, while the children are in her care.
That the parties refrain from using corporal punishment as a form of discipline.
IT IS NOTED that publication of this judgment under the pseudonym Casley & Nisbett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
PAM 4616 of 2004
| MR CASLEY |
Applicant
And
| MS NISBETT |
Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding the Applicant, Mr Casley (the Applicant) seeks a final parenting orders concerning the children of his relationship with the Respondent, Ms Nisbett. In the application the Respondent was identified as Ms Nisbett. In her response to an application in a case, she described herself as Ms T. Upon her appearance she also identified herself as Ms Casley. For the purpose of these proceedings and orders that will be made, she is identified as Ms Casley being the name adopted in earlier orders.
The children of the relationship were [X] born in 1995 and [Y] born in 1997.
Present Orders
As at the date of the hearing the children had been the subject of a interim order made 31 May 2006 which provided that until further order:
a. That the children reside with the Applicant;
b. That the parties be responsible for the children’s day to day care, welfare and development whilst the children were in their respective care;
c. The Respondent was to have contact with the children as may be agreed but failing agreement upon the terms provided in the terms of the order which in summary included all school holidays and made provision for telephone contact.
Applicant’s proposal
In the application for final orders the Applicant seeks orders that:
a. The children [X] and [Y] to reside with him;
b. He be guardian for and have full legal responsibility for each of the children;
c. The Respondent to have access during school holidays as agreed by both parties which such contact is to be supervised by his sister;
d. The Respondent have weekly telephone contact;
e. The Respondent incurs costs of access conditions as stated above;
f. The Respondent not to intrude, harass or trespass on his home or workplace.
Respondent mother’s proposal
In her application the Respondent sought orders that:
a. The Applicant’s application filed 26 September 2006 ‘be discharged’ (sic) which I take to mean dismissed;
b. All previous orders be discharged;
c. The children live with the Applicant;
d. The parties retain joint parental responsibility for the children;
e. She spend time and communicate with the children as follows:
i.For the whole of the school term holidays;
ii.For a period of four (4) weeks in the long Christmas vacation; and
iii.By telephone at all times by a landline number provided by the Applicant.
f. Both parties not denigrate the other in the presence of or hearing of the children;
g. The maternal grandmother shall be present during the majority of the time the wife spends with the children;
h. The parties be responsible for the travel costs on an alternative basis with the Applicant to be responsible for the first visit.”
In broad terms the issues concerning contact in this proceeding concern the extent and terms of contact. In particular the Applicant seeks orders that any contact between the children and the Respondent be supervised by his sister and not the person nominated by the Respondent.
Background
The Applicant and Respondent have known each other since their infancy. They grew up together and attended local schools together in the western parts of Sydney. The Applicant is aged 29 (born in 1976). The Respondent is aged 28 (born in 1977). The Applicant and Respondent commenced their relationship when the Applicant was approximately 16 years of age and still at school. After approximately six months they commenced co-habitation at the Respondent’s father’s house. It appears they resided together until the first child was born in 1995 at which time he and the Respondent took up their own accommodation in a house in a nearby suburb.
Difficulties quickly revealed themselves during the course of the relationship. The Applicant alleged that following [X]’s birth, the Respondent “started to go downhill emotionally” and subsequently developed a gambling habit which caused considerable financial distress to the household. In his affidavit he swore that the second child was born in 1997 at which stage the relationship between he and the Respondent was getting worse. It subsequently transpired that the Respondent had been having an affair with the Applicant’s brother. That matter brings into question the paternity of the child [Y][1]. At that time there was a temporary separation followed by reconciliation and subsequently the marriage between the Applicant and the Respondent on 2 September 2000. It appeared however that by January 2001 the relationship between the parties had irreconcilably broken down and then the parties finally separated.
[1] An order was sought by the Applicant concerning the production of a birth certificate. The Respondent conceded at the hearing her concessions to such an order.
Post separation
Immediately following separation each of the children were split between the parties with the Applicant taking the first child and the Respondent the second and youngest child.
The Respondent says that at the time of separation she was forced to leave the home due to domestic violence and at that time sought and obtained an apprehended violence order. However that allegation does not reconcile with the extract of the police records, Annexure LSN1 to her affidavit filed 22 January 2007. I note that the date of the complaint in respect of that application was 12 June 2001. Although I am not required to decide that point I am not satisfied that, in any event, there was indeed a basis for the apprehended violence order. I note the Court’s record reveals that upon the first return of the application on 9 July 2001 there was neither an appearance by the Applicant or Respondent and orders were made ex parte, presumably upon the representations of police.
In about September 2001 the Respondent and the second child moved to Melbourne to be close to the Respondent’s mother. By the end of that year the first child had been returned by the Applicant to the Respondent’s care. It appears that was done in order to enable the first child to see out the school year in New South Wales before returning to his mother’s care. During 2001 the Applicant sought for the first child as much contact as possible with his sibling. He also regularly exercised contact with both children and paid child support to the Respondent.
During that same year the Respondent commenced a relationship with
Mr B. After taking up together, the Respondent and Mr B moved to the central coast of New South Wales to take up residence before they subsequently returned to Melbourne in late 2001.
Once settled in Melbourne from the end of 2001 both the children resided with the Respondent. Between December 2002 and March 2005 the Respondent and her new partner Mr B had three children being [A] born in 2003, [B] born in 2004 and [C] born in 2005.
It appears that during this time voluntary arrangements were made between the parties for the Applicant to exercise contact with his children. To this end he drove from Sydney to Melbourne to see the boys and collect them and return them to Sydney following contact.
Throughout the period late 2001 to late 2005 there appear to have been a number of changes in the circumstances in the living arrangements of the Respondent. She appears to have lived at variously at Melbourne and on the central coast of New South Wales. Throughout this time her relationship with Mr B endured.
In the meantime however the Respondent had come to the adverse attention of the Victorian Department of Human Services (DHS). The Applicant says that in 2004 he initially received a call from the Department arising from circumstances of domestic violence. He says that he had been contacted because the Department was making an application to the Court for custody of the children. He swore that he travelled to Melbourne and attended the Court but was not successful in obtaining orders on that occasion because he was living interstate and the Court wanted to give the Respondent a “second chance”.
Since that time the Applicant has been concerned about the welfare of the children. He says that he has maintained constant contact with the Department who he noted were monitoring the Respondent and her care of the children as well as he having regular telephone contact with the two boys himself. His contact included meeting the ongoing travel arrangements and costs of having the boys travel to him on school holidays. He maintained that commitment and expense until the boys commenced living with him in October 2005.
In the meantime the Applicant had re-partnered with Ms O. Although he had met her some time before it was not until 2004 that he and Ms O commenced residing together on the Sunshine Coast.
The Applicant swears in his affidavit that there was a gradual introduction of the boys to Ms O and that the introduction was successful and a good relationship has developed between them.
Both the Applicant and the Respondent noted that during the course of the period towards late 2005 the oldest child commenced to display behavioural issues. The Applicant says in his affidavit that he noted when the boys came to visit him that they generally appeared unkempt often dressed in clothes that were too small for them and had the appearance of lacking a balanced diet. He noted “their eyes looked a bit dull and they were often hyperactive.” He swore that the boys reported often eating take away food when living at home with the Respondent. He says that he attended his family doctor who advised him at the time that the boys were showing early signs of an iron deficiency.
He also relates an incident where the eldest child presented during one contact period suffering from an abscess on his gum which had been identified as a problem (although no diagnosis had then been made) in the course of the contact exercised midway through that year. Generally he noted that ailments and complaints made by the eldest child were never the subject of attention by his mother during the periods of residence with her despite those matters having been identified by him to her during brief contact periods.
On the other hand the Respondent says that when she noted that the eldest child commenced to display behavioural issues she presented him to a counsellor who she says identified the issue as “being with the husband”. In her affidavit she says that the complaint was that the Applicant had promised the eldest child that he would provide things for him and then never followed through and that she was then the subject of blame for those omissions. Although nothing turns upon the point the counsellor’s report relied upon by the Respondent was not in evidence at trial. The report would have been particularly useful in assessing that matter.
A change of residence
In mid 2005 a serious event occurred in the household of the Respondent. It appears that on or about 21 October 2005 the Respondent contacted her contact at the Department of Human Services and informed her, among other things, that Mr B had made suicide threats including slashing his wrists and taking off in the car (which I interpret to mean in a violent or aggressive manner); that both the children had been exposed to this incident as neither was at school that day (which raised a related matter the issue of school attendance); that the youngest child had witnessed
Mr B “stabbing himself”; that Mr B had slashed his wrists and was subsequently bleeding everywhere and was still in possession of the knife and was threatening to stab himself in the chest; the police attended the house and sighted blood everywhere throughout the house and the police advised that all five children (being the children of the Respondent’s two relationships) were present and were then seen to be walking around the home barefoot; that the Respondent was disaffected and ambivalent in relation to Mr B’s attempt at suicide; and that following a request by police that she clean up the blood, particularly given the children’s presence, the Respondent advised that she would have a cigarette first and appeared unconcerned about the situation.
In response to that allegation the Respondent says that the event did not occur in the home but rather than Mr B was injured at the hotel and came home bearing those injuries.
From the report provided by the Department of Human Services[2], the Respondent herself complained to team leader Hansell of Mr B having made suicide threats and slashing his wrists and taking off in the car. That was corroborated by a notifier who reported to Ms Hansell of DHS later in the day that Mr B had gone into the house and slashed his wrists. It appears that later than afternoon when Ms Hansell made an unannounced later visit that Mr B then asserted that he had cut himself at the [omitted] pub and not at home and had merely come home while still bleeding heavily.
[2] Affidavit of Mr Casley filed 22 May 2006 Annexure A at pages 12 to 14
In her affidavit filed 22 January 2007 the Respondent swore to a version consistent with the version provided by Mr B to DHS. However the deposition is clearly inconsistent with her earlier statement. It is also inconsistent with the version provided to DHS by the ‘notifier’. Whilst the DHC records relate to hearsay, given that hearsay corroborates the admission made by the Respondent at a time shortly following events,
I accept that on the balance of probability the reported comments reflect the truth surrounding these events.
I prefer as a source of reliable evidence, those notes made by the DHS team leader, Ms Hansell. She has reported an admission made by the Respondent to the effect that Mr B slashed his wrists at the home. That was consistent with the report of an independent notifier confirming that matter. Quite clearly Mr B, at a later time for reasons best known to himself, has chosen to provide another version of events which for present purposes would suit the Respondent. I reject her evidence in that regard.
The events of 21 October 2005 precipitated action on the part of DHS. They contacted the Applicant and informed him they were now seeking orders for the boys to reside with him in Queensland. A case worker was sent from Melbourne to interview both the Applicant and Ms O and to check out the proposed family environment.
On 26 October 2005 orders were made at the request of the Department for the placing of the boys in the care of the Applicant and arrangements were put in place for them to travel to the Sunshine Coast to be with the Applicant and Ms O.
The Respondent’s “spin” on this incident is worthy of note. In her affidavit[3], she noted that Mr B attempted suicide at the [omitted] tavern and then returned home and that upon him returning home she immediately contacted the police and the DHS. She says that “once I became aware of the attempted suicide I acted protectively and immediately contacted the police and the DHS”. That assertion on the part of the Respondent is noteworthy for it’s bald gloss on the facts. I accept the facts as those related by the notes of the officer Ms Hansell which clearly indicate that contrary to the assertions made by the Respondent there was a significant indifference by the Respondent to the events and their effect upon the children. Generally I formed the view that the Respondent’s recall of events was generally unreliable and jaundiced in favour of her own case. Whilst I did not form the view she was intentionally dishonest, I did consider her recollection to be selective. Where her evidence departs from that of either the Respondent or the records of DHS I reject that evidence.
[3] Affidavit of Ms Nisbett filed 22 January 2007 at paragraph 15
Upon the children arriving into the care of the Applicant they were immediately enrolled in the local primary school, [S] State School and a routine established. From observations made to the Applicant by the children’s teachers, it was apparent that the children had not performed to the standard that would have been expected of them having regard to their age. As the Applicant’s new partner was a [occupation omitted], the Applicant and his new partner set about assisting the children to achieve to their potential. This in part involved additional homework and supporting the children’s placement into programs at the school to assist them in catching up. It is particularly noteworthy that the DHS had noted the boy’s had missed 33 school days in the year 2005. That level of absenteeism is by any standards quite unacceptable.
It was also noted by the Applicant that upon the boys coming into his care the eldest child particularly exhibited some anti-social characteristics. On the Applicant’s case the children have settled down since they have commenced residence with them subject to the occasional disturbances that arise by reason of the contact visits which have been agreed between the parties. In particular the Applicant and Ms O have noted that upon the children’s return from contact visits with their mother, they have been unsettled with the eldest child expressing considerable anger and tantrum throwing and the youngest child being noted to be unsettled. The eldest’s behaviour was such that the Applicant sought advice and was informed that one matter of concern for him were these proceedings. That matter will be the subject of later comment.
Apart from the general history of residence, the occasion of recent contact visits has led the Applicant to have concerns about the capacity of the Respondent to exercise contact in an unsupervised manner. Although denied by the Respondent there are assertions that the children, and in particular their dietary needs, are not being adequately accommodated. Furthermore, questions arise concerning general supervision.
In accordance with the directions of the Court, the children were the subject of a family report prepared by Keith Sedgman. His report followed an interview between the Applicant and his partner, Ms O and the children. His interview with the Respondent was conducted by telephone.
Despite the family report writer not having the opportunity to interview the Respondent personally and to conduct an assessment of her circumstances it is clear from this report that he has conducted considerable investigation into her background and has provided to the Court a very useful synopsis of her circumstances. Without rehearsing those matters in detail is apparent that broadly the Applicant is supported by his new partner Ms O. It appears that aside from the children there also reside with the Applicant and Ms O her three children from a previous relationship whose ages range from 17 to 10. In addition to the immediate family the Applicant also has a family in Sydney who to date appear to have provided considerable support. In particular support has been provided by the Applicant’s sister who has children of about the same age as the subject children.
The Respondent, having re-partnered with Mr B, has had three children. They remain very young children, being three girls under the age of 4. The Respondent was also assisted by her mother who resides nearby and is presently in a relationship with another person not being the Respondent’s father but to whom her mother has children. Both the Respondent’s and her mother’s relationships appear to be characterised by abuse and antisocial behaviour such as illicit drug taking.
Best interests
In deciding a particular parenting order in relation to the child, the Court must have regard to the best interests of the child as the paramount consideration: s.60CA Family Law Act.
As to what are the best interests have been provided for in s.60CC. In that regard the Court must have regard to both the primary considerations and the additional considerations provided for in s.60CC(2) and (3).
Generally Part VII of the Act details the considerations and process appropriate to a parenting application. The application has been usefully explained in Goode v Goode 2006 FamCA 1346 which approach I adopt with appropriate modification to allow for the fact this application seeks final and not interim relief as was the case in Goode v Goode.
In this case the relevant primary considerations are:
a. The benefit to the children of having a meaningful relationship with both the child’s parents; and
b. The need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
In the current context these two matters have particular concern.
Whilst it is axiomatic that one of the greatest benefits for a child is to have a meaningful relationship with both of his or her parents, that benefit is tempered by the capacity to have a “meaningful relationship”. In this case for instance it seems unlikely to me that a meaningful relationship can be had with both parents if the children are placed in circumstances where by reason of the conduct by one parent they are unable to enjoy a safe and fulfilling relationship with that one parent such that it contaminates the capacity to enjoy a happy and fulfilling relationship with the other parent.
From the family report it is apparent to the reporter that the Respondent is subject to a number of uncertainties concerning her capacity and commitment to parent particularly because she has five children with differing needs and because of her dysfunctional relationship with Mr B[4]. This matter appears to be exacerbated by the differences in parenting between the two households where the report writer noted that in the Nisbett-B household the children’s emotional and physical needs are not adequately met[5]. Furthermore the Respondent makes inappropriate statements to the children which threatens to undermine their Queensland placement. This led the report writer to consider that the Respondent “is conflict and not child focussed and uses the boys to meet her personal agendas rather than being committed to her son’s emotional and psychological stability and best interests”[6]. He goes further and concludes ‘there is a danger that unconditional or unsupervised mother-son contact will undermine (the children’s) placement with their father”[7]. In light of this evidence I conclude that it is critical in this case to give careful consideration to structuring orders to ensure the children can develop a meaningful relationship with each parent. In particular it will be important to ensure one parent by conduct does not poison the children’s relationship with the other.
[4] Family Report paragraph 52, page 27.
[5] Family Report paragraph 53, page 27.
[6] Family Report paragraph 54, page 28.
[7] Family Report paragraph 55, page 28.
Secondly by reason of the circumstances which are discussed below, it is apparent to me that there is a need in this case to protect the children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. Again this particularly applies in the circumstance of the Respondent’s environment where this was apparent. As outlined above the Respondent’s household unfortunately records a history of neglect and violence. It has in my view the potential to adversely impact upon the children’s relationship not only with the parent from whom the children require protection but also to adversely impact upon the other parent because of the impact of those matters upon the children generally.
Concerning the additional considerations:
Children’s views
The oldest child has expressed the view that he would prefer to remain living with his father for “the positively grounded reasons that his quality of life, involvement in activities and happy family in Queensland are attractions and for the negatively grounded reasons that he fears further conflict and fights in his mother’s home.”[8] Likewise the youngest child expresses similar views. He says “I would like to live with Dad, he does nice things for me and I do nice things for him and we treat each other nice – I just worry about my Dad and my step Mum. I wish Ms O was my real mum. She’s nicer than [Ms Nisbett](first name omitted).” As the report writer noted “(The youngest child’s) views that he wants to live with Ms O and Mr Casley appear to be… grounded in positive reasons in relation to them and in negative reasons to relation to Ms Nisbett and
Mr B.”[9] Despite the age of the children it is apparent to me that they have witnessed much in their short lives. In particular not only have they witnessed many unsavoury events but they have also experienced the considerable difference of environment provided for in the households of both the Applicant and the Respondent. Despite their tenders years, I am satisfied that they are sufficiently able to express a view in respect of those matters and that it would be appropriate for me to have regard to those views.[8] Family Report, page 19
[9] Family Report at page 21
Nature of relationships with parents and other persons
Each of the Applicant’s and Respondent’s households are comprised of relatively stable figures involving each of the Applicant and Respondent and their respective partners and immediate and extended family. (By stable I mean the figures constitute figures in the household and are reasonably likely to remain so despite the nature of their relationship. For reasons which follow I do not accept the figures themselves are stable personalities.).
Concerning the Applicant’s household, it is clear that the Applicant has
re-partnered with a very stable relationship. His partner is a person who has three children, the youngest of which is at an age reasonably close to the age of the eldest child. The relationship between the children and particularly Ms O appears to be a good one. For instance the report writer has noted that both children made very positive comments in respect of Ms O noting such things as “she’s the same as Dad and a good cook” and “there is nothing he (the eldest child) would change about her.”[10] Likewise the youngest child has positive thoughts and comments to make about Ms O. He noted to the family report writer that there is nothing he would change about her as “she’s nice”.
[10] Family Report at paragraph 33, page 18
Those comments appear to be comments made with some experience of the boys living in the household as they have now resided with
Ms O since late 2005 (a period of approximately 15 months). In my view that period would have enabled sufficient time to pass for any novelty effect to wear off.
Concerning Mr B, it is sadly the fact that the boys do not regard him likewise. It appears from the family report that the eldest child associates Mr B with bad or sad memories from when he was with his mother such as “Mum and Mr B had a fight. There were heaps of fights. They hurt each other. It happened maybe each month. The police and the ambulance came. Mr B did something stupid. He cut his hand and there was blood everywhere.”[11] Likewise the youngest child has a similar associative memory. He noted to the family report writer, that he had a bad and sad memory “when I stayed with Mum’s friend. We were going to live there. Mr B and Mum had a big fight and someone whacked Mum. Mum was crying and sad.”[12]
[11] Family Report at page 17, paragraph 31
[12] Family Report at page 19, paragraph 36
The relationship between the Applicant and Ms O appears to be successful and stable. In particular the comments made by Ms O to the family report writer appear to provide a genuine sense of insight into the responsibilities being assumed by her.
Mr B however has been noted to be a person who has longstanding psychological problems and has had extensive contact with health professionals. Indeed it appears from the report of the family report writer that Mr B has understated these matters to some extent. Whilst Mr B offers unconditional support to the Respondent, it is clear that that relationship is unstable and chaotic. So much was noted by the family report writer who made the observation that each of them have made domestic violence and abuse allegations against each other and have talked or threatened to undertake family court proceedings against each other over the children to their relationship. In addition to those matters there are allegations against each other concerning gambling, drug abuse and addiction, self harming and violence and child abuse and neglect. Some of those allegations in my view have some substance. So much can be gleaned from an examination of the reports issued by the Department of Human Services Child Protection Unit which are exhibited to
Mr Casley’s affidavit filed 22 May 2006. There is for instance unchallenged evidenced of violence and self harm in the household in the presence of the children in the course of the event which occurred on
21 October 2005, reported upon by DHS.[13] Likewise while the children were in their care the Department of Human Services in a court report made 30 August 2005 sponsored an application for a protection order on the basis that all the children then resident with the Respondent and Mr B (including the children the subject of this proceeding) had suffered or were likely to suffer harm as a result of physical injury and that the parents had not protected or were unlikely to protect the child from some type of harm and that the children had suffered or were likely to suffer emotional and psychological harm such that the children’s emotional or intellectual development could be significantly damaged. The basis for those complaints appear to be have been an assault by Mr B upon
Ms Nisbett which occurred in the presence of the children.
[13] Affidavit of Mr Casley filed 222 May 2006 Annexure A at pages 12 to 15
Those matters were summarised by the family report writer in his report and I will not rehearse them here.[14]
[14] See Family Report, page 24, paragraph 45
Overall it appears by reference to that material that although the children enjoy a relationship with Mr B it is not necessarily a healthy relationship by reason of his dysfunctional personality.
Others who warrant consideration in relation to this application include the Applicant’s sister, Ms B. In an affidavit sworn by her (filed
26 September 2006) she deposes to having two children aged 9 and 6 and having a close relationship with the children. She says she particularly knew them as they grew up in Sydney and had frequent contact with them then and that they would often stay at her place overnight. She formed the view that they appeared to enjoy their time with her and her family. Ms B was required for cross examination, but once called was not
cross examined. She was only made available by telephone because she resides in Sydney.
In any event, I formed the view that by reason of Ms Nisbett’s failure to take any issue with Ms B, that she generally had no complaints concerning Ms B and the manner in which Ms B interacted with the children. In particular I took unchallenged Ms B’s evidence that she had extensive involvement with the children when the respondent had lived in Sydney and that the relationship with the children had been good.
The other significant person was the Respondent’s mother, Ms M. Likewise Ms M was required for cross examination. She too was
cross examined by telephone. In her evidence Ms M intimated that she knew the children by reason of her relationship with the Respondent. She informed the court that she had had extensive contact with the children and in the context of recent orders involving supervision of the children had been the party charged with the responsibility to supervise the children’s contact in accordance with the Court’s orders. Although Ms M struck me as a witness who genuinely wished to provide the Respondent with support, I was left with real concerns about her ability to provide meaningful support in the context of the Respondent’s relationship with these children. For instance in the course of cross examination she acknowledged that in a report made by DHS Mr B was interviewed by DHS and said he had concerns in relation to the children staying with her because he alleged that she smoked in the house.[15] It transpired from that line of questioning that in fact Ms M when referring to smoking was clearly referring to the smoking of marijuana. She confessed in evidence to having used ‘pot’ for the last 15 years although says she stopped using it approximately two months ago. In the course of cross examination, she also confessed that her partner [name omitted] was violent toward her. Furthermore she appeared to lack insight into the need for supervision of the children whilst exercising contact with their mother. Likewise she was in denial concerning an event of sexual abuse which occurred between the Respondent and Ms M’s brother who was then living in her household. It was apparent to me from the evidence of the Respondent concerning that issue that she had been significantly traumatised by this event. She subsequently swore that when she sought to raise the matter with her mother Ms M simply refused to accept the matter. When
cross examined about the matter Ms M continued to adopt a view of steadfast denial that any event ever occurred. Given the fact that these events occurred a long time ago and the manner in which the Respondent gave her evidence concerning these matters and its peripheral bearing on this case I consider her expression of evidence on this point to be an honest recollection. It was clearly a traumatic event and despite that matter and the ongoing hurt that it has caused the Respondent, Ms M continues to reject the prospect out of hand. Overall I formed an adverse impression of Ms M as someone who has a relationship with the children and could be regarded as a potential resource in the ongoing contact issues between the parties.
[15] Affidavit of Mr Casley filed 22 May 2006 Annexure A at page 45
Willingness of the parties to facilitate a continuing relationship with the other parent
There is a considerable degree of suspicion on the part each party concerning this matter. It has its genesis in the extensive history between the parties over the life of the children. In particular the Applicant has concerns that the Respondent has not only exposed the children to unnecessary violence but that the Respondent shows a cavalier and dismissive view to his concerns about matters relevant to the day to day care of the children in particular dietary considerations. These matters appear to impact upon his ability to unequivocally facilitate and encourage a closer and continuing relationship between the children and the Respondent. However having said that, there does not appear to be any evidence of those concerns that manifest themselves as more than mere concerns of the Applicant. For instance it can be seen by a review of the family report that there do not appear to be any allegations made by the children that the Applicant has sought to poison or otherwise influence the attitudes of the children towards the Respondent. However those matters are apparent concerns the Applicant as expressed by him in his affidavit filed 17 January 2007 where he addressed those matters particularly at paragraphs 32 to 36; 62 to 66; and 83 to 85. Despite an absence of firm evidence to found all his concerns I accept there is a reasonable basis for concern.
Overall I formed the view that there was on the part of the Applicant a willingness to facilitate and encourage a close and continuing relationship between the children and Respondent subject to there being in place adequate protections to ensure the children were properly cared for during periods of contact. Otherwise since the children have commenced to reside with the Applicant, the Applicant has encouraged telephone contact between the children and the Respondent although I note that that too has not been without occasionally difficulties.
On the contrary, the same cannot be said for the Respondent. It is quite clear from the complaints made by the children to the child reporter that there is not a willingness on the part of the Respondent to facilitate a close and continuing relationship between the children and the Applicant.
For instance, the child reporter noted that in respect of both the children that they complain that the Respondent has denigrated the Applicant
and continues to make negative remarks concerning him and his partner, Ms O.[16]
[16] Family Report pages 18 to 20
In this case each of the parties has taken and sought to take the opportunity to participate in the decision making about the major long term issues in relation to the children, spend time with the children and communicate with the children. However in my view the Respondent has failed to facilitate the communication between the Applicant and the children by her making of derogative and pejorative comments to the children concerning their father. I note the Respondent’s complaints that the Applicant has not made adequate arrangements for contact between the children and the Respondent and that she believes the Applicant is seeking to alienate her from the children by the means by which telephone contact has been undertaken to date. In particular I note that telephone contact has been undertaken by the Applicant using a work telephone for that purpose. The basis for this arrangement initially coming into place was not explored in evidence. However I accept that the arrangement is now unsatisfactory in view of the final nature of contact and residence orders to be made. It is appropriate for that arrangement to now be reviewed. However I do not accept that in the interim the regime that has been in place was put in place and maintained by the Applicant with a view to limiting communication between the Respondent and the children. It is clear to me by reason of the Respondent’s circumstances and her personality and also the difficult characteristics of Mr B that the Applicant was anxious to protect the other members of his household from vexatious telephone contact being made with the members of his household. That was not an unreasonable consideration in my view. This is particularly so by reference to events which have happened since separation between the parties. Appropriate orders will be made to address those concerns.
In conclusion I find that there is unfortunately generally no genuine willingness on the part of the Respondent to facilitate and encourage a close and continuing relationship between the children and the Applicant.
Likely effect of any changes in the child’s circumstances
In this case the most likely effect of any change in circumstances if ordered will relate to the impact upon contact. To date contact has been exercised by the children travelling to Melbourne. Unquestionably if the Applicant’s proposal is ordered, this will result in some hardship upon the Respondent. The Applicant proposes that the children travel to Sydney where contact will be undertaken on a supervised basis with the contact being supervised by the Applicant’s sister.
The effect of this proposal is twofold. Firstly, the Respondent will be required to incur additional expense in undertaking contact visits because of the need to travel to Sydney and accommodate herself there. Secondly, the Respondent will also need to make provision for the accommodation and travel expenses of her three daughters who will also travel to Sydney with her for the purpose of exercising contact visits.
Clearly unless some arrangements are made to ensure that those expenses are met, the prospect of effective contact taking place would be diminished and would in my view have a substantially detrimental effect on the children’s right to maintain personal relations and contact with the Respondent. Those matters will be provided for in the orders.
Capacity to provide for the needs of the children
Both the Applicant and Respondent appear to have a physical capacity to provide for the physical needs of the children whilst in their respective care. In this case the real question is as to the capacity of the Respondent to provide for the emotional and intellectual needs of the children whilst the children are in her care. A fundamental perquisite to capacity is insight into one’s ability to perform a task. In this case there is in my view a real issue as to whether or not the Respondent does have the capacity, in an unsupervised environment, to provide for the needs of the children. As noted above it appears to me that the Respondent lacks insight into the inappropriateness of her conduct and circumstances and the difficulties which they occasion. Two further illustrations in the context of the children lend support to that view. It came to the attention of the Applicant following the most recent contact visit that the children had been exposed to a video which appears to have been of an unsuitable nature, the video “Cave”. It was described as a horror movie with significant violence and a 15 plus rating. The Respondent said that to her knowledge the children did not watch the video. However she later conceded that the video could have been watched by the children after she herself had fallen asleep in the front the television. It transpired that it was not unusual that the children would watch television until 1.00am in the morning. It appeared to be of no concern to the Respondent that the children would watch television until such a late hour and that they could, despite her presence, watch unsuitable material on television. The second matter concerns her lack of insight into the adverse effect of events of violence in the presence of the children. When cross examined concerning the events of 21 October 2005, her only concern was to deny the event occurred in her household. As I earlier determined, I do not accept her evidence in this regard. Significantly however she did not appear to have any appreciation of the significance of these events in the presence of the children. I accept she called the police and ambulance but consider that her resolve to do so was motivated more by a concern for herself and her own wellbeing rather than that of the children.
Likewise I have real concerns about the insight of Ms M to provide for the needs of the children. Her response to her daughter’s complaints of sexual abuse in my view clearly illustrate that matter. Furthermore other matters contained in her evidence occasion concern. Her attitude to court ordered supervision was that it was “ridiculous”. She did not believe or accept that the Respondent required supervision because she considered that the Respondent was no longer a threat to her children.
Overall, her lack of insight into the need to place the needs of the child as a paramount consideration was most telling.
Maturity, sex, lifestyle and background of the child
In the context of the dispute here concerning the nature and ambit of contact these matters have only limited importance but had been considered in the mix.
Attitude to the child and to the responsibilities of parenthood
It appears to me that the Applicant’s attitude to the child and responsibilities of parenthood as disclosed by his affidavit and also as is apparent from the family report appears to be appropriate. The Applicant’s principal concern is for the welfare of the children and in particular to ensure that on those occasions that the children are exercising contact, that they are protected from violence and other inappropriate conduct such as drug taking and are also properly sustained. For reasons which I have identified earlier in this judgment, it is apparent to me that the Respondent does not have the insight into those matters and the risks that those matters pose to the children. Although I accept the Respondent does generally have the children’s interests at heart, it is apparent to me that she lacks some insight into those responsibilities and to that end, appropriate orders are required.
Family violence
There have in this case been incidents of family violence in the household of the Respondent. Those matters have been discussed above. I do not consider the prospect of that violence as having diminished. I note in her cross examination the Respondent expressed the view that she did not consider Mr B to be a significant person in the children’s lives. However that observation ignores the fact that Mr B still lives with the Respondent although the circumstances of that living arrangement were not particularly clear. I note her evidence that in recent times Mr B has been living at the property on a part time basis because of his employment on the other side of Port Phillip Bay. It appears however that in recent times he has resumed employment at a place more proximate to their residence in the Dandenong region and that it would seem they have re-commenced full time cohabitation. That being the fact, it seems incomprehensible to me that it could be suggested Mr B was not a significant person in the children’s lives or at least would not be so if they were to exercise contact with their mother in Melbourne. There is in my view a clear risk of domestic violence continuing and the children being exposed to it if contact was to be undertaken in the Respondent’s house.
Existence of any family violence orders
By order made in the Melbourne Magistrates Court on 8 November 2005, the children were placed with the Applicant on interim accommodation orders. A copy of the form of orders were not produced to the Court. However a summary of the orders was contained in the report annexed to the affidavit of Mr Casley filed 22 May 2006, at annexure A at page 6. Those orders although as being addressed to the “father” were clearly directed to Mr B in terms of the manner of contact to be undertaken by him. Concerning the Applicant himself, it appears that the only order was the interim order affording him protective custody. I expect that given the nature of the facts underlying the application, those orders may now have been made final. In Any event, the orders of this Court will supersede any such orders.
Equal and shared parental responsibility
When making a parenting order the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility: s.61DA(1). That presumption however does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence; s.61DA(2).
Family violence is defined in section 4 to mean “conduct by a person towards a member of the person’s family that causes that or any other member of the person’s family reason to fear for or reason to be apprehensive about his or her personal well being or safety”. Whilst some question may arise as to whether or not the events of self harm constitute family violence for the purposes of the definition provided at section 4 of the Act, there are in any event many other instances of violence which involve conduct by the Respondent’s partner, Mr B towards the Respondent which would constitute a basis for her to both the Respondent and the children to reasonably be apprehensive about their personal well being or safety. Those matters include the following events which are recorded in notes made by the Department of Human Services. They include an event on 21 October 2005 when the Respondent contacted the Department and informed that that Mr B “had been off his head and punched through a window”. That was an event which was witnessed by the children.[17] On 29 July 2005 it is alleged that Mr B hit the Respondent in the face resulting in her receiving “a fat lip”.[18]
On 16 July 2004 there was a further incident of domestic violence between the Respondent and Mr B involving the Respondent allegedly stabbing Mr B resulting in a superficial injury and in him having thrown a high chair at a house wall causing damage to that property.[19] Further on an occasion prior to 19 July 2005 it appears that the Respondent broke her wrist by punching the wall in her laundry. It appears she was in part motivated by a sense of frustration regarding the lack of support from her own mother and a sense of being overwhelmed by the care of her five children.[20] Finally the Respondent admitted that the violence she has suffered has been a continuing feature of her relationship with Mr B and was indeed evident on those occasions when she was pregnant with her daughters.[21]
[17] Affidavit of Mr Casley filed 22 May 2006 Annexure A at page 12
[18] Affidavit of Mr Casley filed 22 May 2006 Annexure A at pages 42 and 45
[19] Affidavit of Mr Casley filed 22 May 2006 Annexure A at page 47
[20] Affidavit of Mr Casley filed 22 May 2006 Annexure A at page 53
[21] Affidavit of Mr Casley filed 22 May 2006 Annexure A at page 59
In any event I think it is open to argue that self inflicted harm falls within the definition of family violence. Family violence means “conduct -- for a person -- towards a member of the person’s family. That causes that -- member of the person’s family reasonably to fear for -- his -- personal wellbeing or safety”.
I do not consider that the language of the definition is unnecessarily tortured by having the subject and object of ‘conduct’ the one person. Clearly Mr B was a member of the family and so conduct by him toward himself would be contemplated within the definition. The circumstances of self harm clearly enliven the prospect of reasonable apprehension about his wellbeing when objectively assessed.
In my view the circumstances provided for in s.61DA(2) arise and the presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility does not arise in this case.
Therefore ultimately in resolving the appropriate parenting orders the Court must have regard to the best interests of the children as the paramount consideration: s.65AA. In this instance for reasons explained above the Court has very broad powers by operation of s.65D(1) as this is not a case where there is a presumption of equal shared parental responsibility.
In this case the parties each agree that the children should be resident with the Applicant. Accordingly the only substantive issue is contact.
In the minutes of final orders sought by the Applicant, the Applicant seeks orders that the parties retain a joint parental responsibility for the children. The mother also claims orders in those terms in her proposal contained at paragraph 51 of her affidavit filed 22 January 2007.
However in this case I am not satisfied that such an order would be appropriate despite it being one that is agreed to by both parties. It is apparent from a review of the family report that the family reporter has real concerns about the ability of the Respondent to apply herself appropriately to the matter of joint parental responsibility. This arises because of lack of insight on her part as to her own shortcomings which in turn reflect upon her ability to appropriately deal with issues concerning her children. Those opinions are borne out in my opinion by the facts as I have found them and expressed them above and were amplified for instance by the events detailed above concerning the exposure to unsuitable material, lack of supervision, lack of care, violence in the presence of the children, drug taking in the presence of the children and speaking to the children inappropriately concerning these proceedings and using the children as a conduit to ventilate her negative attitude concerning the Applicant. Given the nature and responsibility of an order for joint parental responsibility and particularly having regard for the need for the parties to communicate to give effect to such an order, I cannot be reasonably satisfied such an order would be effective. That matter only merely compounds my initial view that the Respondent lacks the requisite qualities to make appropriate decisions motivated solely by the best interests of the children. I do consider it appropriate to not make such an order despite the request of the parties as I do not consider such an order would be inconsistent with the guidelines provided for under the Act, namely to achieve the child’s best interests: U v U (2002) 211 CLR 238 at 260.
Ms B in her affidavit stated she had “no reservation at all with supervising the (Respondent’s) time with (the children) --- either at (her) home or at a mutually convenient location”.
A matter not commented upon by Ms B is supervising contact not only between the children and the Respondent but also the respondent’s other three children. This too must occur at the same time. No doubt her reference to supervising contact at a “mutually convenient location” addresses that matter.
Contact
In terms of contact orders I consider the contact orders proposed by the Applicant in his proposal 3 and 4 to be appropriate subject to one matter. In my view it is not appropriate for telephone contact to be effected by telephone to the Applicant’s work number. Whilst I appreciate the Applicant’s concerns about the prospect of abuse of telephone contact rights and in particular the prospect that the Respondent might conduct herself in an abusive manner towards Ms O and or the Applicant, I consider home telephone contact appropriate. If later circumstances prove otherwise that is a matter which may need to be the subject of subsequent review. For the time being, I think it is appropriate that the Respondent have greater telephone contact with the children than might ordinarily be the case. This is particularly so because the parties are estranged by distance and when contact does occur, it will not occur in the Respondent’s residence but rather in a supervised manner.
Supervised contact
In the family report is noted that “there is a danger that unconditional or unsupervised mother son contact will undermine” the children’s placement with their father and this is to be avoided. He noted that the Respondent and her partner’s separate and shared, personal relationship and parenting chaos would be imposed upon the children and would erode their placement with the Applicant and his partner. He considered that for unconditional or unsupervised mother/son contact to take place, there would need to be a significant shift in the Respondent’s attitudes including toward her parenting. He noted:
“There are few indications from past history that suggest (the Respondent) takes responsibility for her attitude and actions and that she will be self managing and this compels the report recommend conditional or supervised contact.[22]”
[22] Family Report paragraph 55, page 28.
The evidence of the parties supports the family reporter’s conclusion in that regard. I am satisfied that it is appropriate that there be some form of supervision on occasions of contact.
The question remains as to how contact be supervised.
The proposals range between supervised contact by the Applicant’s sister being effected in Sydney and supervised contact being undertaken at the Respondent’s mother’s place in Melbourne.
The father proposes that contact being supervised by his sister, Ms B.
The mother’s proposal is that if there be a need for supervision then such supervision should be undertaken by her mother Ms M. In her affidavit Ms M swore to having had to care for the children on previous occasions when the DHS had removed them from the Respondent’s residence during occasions of concern. She noted that in mid 2005 all of the Respondent’s children came to live with her. She swore that initially the girls were returned to the care of the Respondent on 31 August 2005 and the boys remained in her care but were subsequently returned to the Respondent in October 2005. She swore that she contacted the Applicant and requested that he take care of the boys following which the boys were returned to the care of the Applicant in November 2005. She swore the girls were returned to the care of the Respondent in 2006. Despite the obvious inaccuracies in her reporting of those matters[23] it is clear she had exercised supervisory care of the children in the past.
[23] See generally Affidavit of Mr Casley, Annexure A, page 47.
In the family report the reporter noted that while the Applicant proposed that the mother/son visits take place under his sister’s supervision there is less cost and more benefit attached to the maternal grandmother hosting all five children and the Respondent for a week of each school holiday in Melbourne to preserve the children’s experiences with their half siblings, their “nanna” and the environment and culture they previously lived in.
Given the history of the Respondent’s circumstances in Melbourne and the involvement of the Respondent’s mother particularly through the DHS, the basis for the reporter’s recommendation is obvious.
The family reporter’s opinion is however subject to a significant caveat. He observes that he felt compelled to recommend that the maternal grandmother provide an undertaking not to use illegal drugs while the boys were in her care and under her supervision and that she did not allow others to use illegal drugs in or at her premises during those times. Whilst such an order may in theory resolve one obvious source of potential harm to the children, the reality is that the making of such an order would be pointless if the court could not be satisfied that such an order would adhered to. Given the maternal grandmother’s disposition to the consumption of marihuana in the past, I have to be satisfied that she would abide such an order. If the consumption of marihuana formed part of her living routine the prospect of suspending that routine on occasions when the children were present for the purpose of contact visits does not appear strong. In saying that, I am mindful that she has remarried and has other children to that marriage and despite those matters has for the past 15 years been a regular user of marihuana. While no evidence was placed before me concerning the attitude of her husband to the consumption of marihuana, one can only infer that given she has continued to consume marihuana for the past 15 years the matter is one that either does not trouble her current husband or is at the very least tolerated by him. Accordingly one can assume that there is unlikely to be any support from
within her household to ensure she were to comply with any such direction made by the Court. Furthermore I am not entirely satisfied that her household represents a safe place for the children. By reasons of the matters that have been earlier identified concerning domestic violence within her household it is apparent to me that there is a real risk that the children may be subject to exposure to violence were they to reside with her during the course of contact visits.
On the other hand, it is clear that a safe and appropriate environment can be established at the household of the Applicant’s sister. There may be some additional cost involved but this is a matter which will have to be addressed in the orders in order to ensure that the Applicant makes an appropriate contribution to the cost of these contact arrangements.
On balance I consider the best interests of the children will be served by requiring contact be effected in a supervised manner with such supervision being effected by the applicant’s sister or some other person who may be acceptable to the parties. It is unfortunate that the effect of such an order will be that contact will most likely now take place in Sydney and that will put both parties to additional cost. However in my view that will provide the best outcome for the children.
Conclusion
The parties agree the children should live with the Applicant. The only real issue was contact and how it should be undertaken. I have concluded it is in the best interests of the children that contact be supervised.
I consider it most appropriate that the supervision be effected by the Applicant’s sister Ms B. Appropriate orders will be made to ensure, as best as possible, the Respondent and her other three children can exercise this right. I have also concluded an equal and shared parenting order would not be in the best interests of the children.
Orders
Accordingly I make the orders as set out at the commencement of these reasons.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Bev Schmidt
Date: 15 February 2007